A recent article released by Task & Purpose sheds light on the fact that active duty military personnel have no recourse for medical malpractice. We frequently get calls about such cases, some of them quite tragic. There is nothing we can do for them. This sad situation is not dictated by the controlling statute, the Federal Tort Claims Act, rather it is a judicial creation, the so-called Feres Doctrine. It is not right. And it has never been right. The Supreme Court got it wrong 65 years ago.
Our President & Attorney, Brewster Rawls, was happy to provide information to Task & Purpose for this insightful article. It is a scandal, a long standing one. Congress needs to fix this injustice.
In the decades since the rule was established, it has been applied to a wide range of instances — from training mishaps, to sexual assault, and medical malpractice.
“What it has boiled down to over the years is where the care provided was, to use the term, ‘incident to military service,’ you’re not covered under Feres,” Brewster Rawls, a malpractice attorney and president of Rawls Law Group, told Task & Purpose. “That has been consistently applied in malpractice cases as being basically, if you’re on active duty and you’re treated in a military hospital, through a military healthcare provider, tough luck.”
The Feres Doctrine is an interpretation of the Federal Tort Claims Act, and as a Supreme Court precedent “has the force of law, but it is how the law has been interpreted, not how Congress wrote the law,” Rawls said.
Ultimately, that means Feres can only be changed in two ways: Through Congress, in the form of an amendment to the Federal Tort Claims Act; or through a Supreme Court decision to overturn the 1950 ruling.
It’s difficult to say for sure exactly how many service members or military families have claims that run afoul of the Feres Doctrine, since the suits aren’t always taken up by attorneys.
That’s because Feres cases are near-impossible to win.